Transcript of a talk presented 2006-xx-xx at the Plone
conference. Errors and corrections to
the webmaster.

Eben Moglen -- Software and Community in the Early 21st Century

Host: For this years 2006
conference. Our keynoter is Prof. Eben Moglen the long time counsel
for Free Software Foundation, the founder of Software Freedom Law
Center and faculty member at Columbia University. I believe you have
given a 125,000 speeches and so I am sure that a 124,000 of those
introductions were better than anything my feeble mind can come up
with. So instead of talking about you, I want to talk about us. I was
going to talk about myself. Some of us are the creators of software
that we give away for the public good. Some of us, particularly at
this conference, particularly in the non-profit sector use this
software for the public good. For e.g. Oxfam, Great Britain - great
friends of ours - they have people who actually are on the ground in
Africa doing good things for humanity.

Both of us, both the creators and the consumers are bound together in
this activity, in this community, based on a conversation and a set of
ideas, where we want to be - instead of, we don't want you to be
recepients of our software, we want you to be participants in our
software. And that is a very big change of ideas, a change of
positions, change of rights. What's wonderful about this is that,
we're only able to have this conversation and to do these kinds of
things based on the people who came before us. We are, we are the
beneficiaries of people that have created this set of ideas, this
system to put it into action. We have fortunately, we have someone
today who has spent decades doing this. Putting these actions, these
thoughts into actions, doing things, putting thoughts into action,
really getting real things done. So it is with great joy for us that I
introduce professor Eben Moglen.

[applause]

Eben Moglen: Thank you. If I
had in my life given a 125,000 speeches, which, I believe, is only
believed by the people who've listened to them, I would still rarely
have received a better introduction because rarely indeed has it been
less about me, it isn't in fact about me at all - which I rather like.

I want to talk about the piece of our common lives, that Paul is
pointing at. These rules, these methods of living together around
software. And I want to try and explain what I think their larger
moral and economic meaning is. It is both a moral and an economic
analysis, it has to be. It began as a moral question. It remains a
moral question, but it becomes along the way also a window into the
economic organisation of human society in the 21st century. If you
think about the 20th century economy, out of which we are passing, its
primary underlying commodity was steel. The making of steel was the
20th century root activity and societies measured themselves
substantially by their success in producing steel. It was the first
sign of the reawakening of Europe as an economic entity, after the
devastation of the second world war. What we now think of as the
European Union and we thought of for a while as the European Economic
Commision and before that as the common market began, as you may
recall, under Jean Monnet as the Coal and Iron Union to bring back the
European industrial economy.

[5:01]

The Asian tigers began to claim for themselves rising importance in
the world economy when they began producing noticeable amounts of
steel. And when Mao Zedong tried to imagine an alternative form of
economic development for the People's Republic of China in The Great
Leap Forward, his best thought was backyard steel furnaces.

So that was how the 20th century thought about collaboration in the
economy, it made steel and from steel it made the rest of what the
20th century possessed, for the exploration of the environment and the
control of nature for human benefit.

The 21st century economy is not undergirded by steel. The 21st century
economy is undergirded by software, which is as crucial as the
underlying element in economic development in the 21st century as the
production of steel ingots was in the 20th. We have moved to a
societal structure in this country, are moving elsewhere in the
developed world, will continue to move, throughout the developing
economies, towards economies whose primary underlying commodity of
production is software and the good news is that nobody owns it.

The reason that this is good news, requires us to go back to a moment
in the past in the development of the economies of the West before
steel. What was, after all, charecteristic of the economy before steel
was the slow, persistent, motivated expansion of European societies
and European economies out into the larger world, for both much evil
and much good, built around the possession of a certain number of
basic technological improvements, mostly to naval, transportation, and
armament. All of which was undergirded by a control of mathematics,
superior to the control of mathematics available in other cultures
around the World. There are lots of ways we could conceive the great
European expansion, which redescribed human beings relationship to the
globe. But one way to put it is they had the best math and nobody
owned that either.

[8:00]

Imagine if you will for a moment a society in which mathematics has
become property, and its owned by people. Now, every time you want to
do anything useful, build a house, make a boat, start a bridge, divise
a market, move objects weighing certain numbers of kilos from one
place to another, your first stop is at the mathematics store to buy
enough mathematics to complete the task which lies before you. You can
only use as much arithemetic at a time as you can afford, and it is
difficult to build a suffcient inventory of mathematics, given its
price, to have any extra on hand. You can predict of course that the
mathematics sellers will get rich. And you can predict that every
other activity in society, whether undertaken for economic benefit or
for the common good, will pay taxes in the form of mathematics
payments.

The productisation of knowledge about computers, the turning of
software into a product was, for a short crucial period of time, at
the end of the 20th century the dominant element in technological
progress. Software was owned. You could do what you could afford, and
you could accomplish what somebody else's software made possible. To
contain in within your own organisation, a sufficient inventory of
adaptable software, to be able to meet new circumstances flexibly was
more expensive than any but the largest organisations seeking private
benefit in the private economy could afford to pay.

We are moving to a world in which in the 21st century the most
important activities that produce occur not in factories and not by
individual initiative, but in communities held together by
software. It is the infrastructural importance of software which is
first important in the move to the post industrial economy, it isn't
that software is itself a thing of value. Thats true. It isn't that
applications produce useful endpoint activities or benefit real people
in their real lives. Though that's true. It is that software provides
alternate modes of infrastructure and transportation. That's crucial
in economic history terms because the driving force in economic
development is always improvement in transportation. When things move
more easily and more flexibly and with less friction from place to
place economic growth results. Welfare improvements occur. They occur
most rapidly among those who have previously been unable to transport
value into the market.

In other words, infrastructure improvement has a tendency to improve
matters for the poor more rapidly than most other forms of investment
in economic development. Software is creating roadways that bring
people who have been far from the centre of human social life to the
centre of human social life. Software is making people adjacent to one
another, who have not been adjacent to one another. And with a little
bit of work, software can be used to keep software from being
owned. In other words, software itself can lift the software tax,
that's where we now are at that moment, on that cusp.

In this neighbourhood at this moment the richest and most deeply
funded monopoly in the history of the world is begining to
fail. Within another few months the causes of its failure will be
apparent to everybody. As they are now largely apparent to the
knowledgeable observers of the industry, who expect trouble for
Microsoft. The very engineering limits of trying to make software that
you own work as well as software that the community produces are
becoming apparent.

It used to be suggested that eventually software produced without
ownership relations might achieve superiority beyond that of software
produced by proprietary producers. It used to be argued that that
might eventually happen. When those of use who had some theoritical
experience in this area said, "why do you think its only going to
happen eventually? its happened already". People had a tendency
to point at the monopoly products and show the ways in which they are
still one way or another, better. You see you can't do it.

The browser, as we are all aware, is a pretty crummy piece of
software, it's commodity activity now, those browsers. And Microsoft
has written some browsers. And they have been working on the browser
they have just released for years. And now they have announced, what
their best browser at present levels of engineering investment can
be. And on the day of its release it is less good than the unowned
competitor, produced by who? what? where? when? On the day of its
release.

What is being seen this week, next week, the week after about Internet
Explorer version 7 will soon be seen about operating system kernels,
file systems, desktop and window management and all the other
commoditised parts of a client side operating system at which we are
now operating to produce superior software at infinitely lower
price. We are still, only partially of course, but we are still a
capitalistic society. And when someone entrenched, no matter how
deeply is producing overtly inferior goods at three orders of
magnitude higher price, or infinitely higher price, the event, or the
outcome of the event is obvious. Ownership of software as a way of
producing software for general consumption is going out for economic
reasons.

But, as I said, the economic insight that we can get from watching the
transition from steel to software is far less important than the moral
analysis of the situation. The moral analysis of the situation
presents where we are now as, if I may borrow a phrase, a singularity
in human affairs. One of the grave problems of human inequality for
every one who has attempted to ameliorate the problem of human
inequality, which is most thinkers about the morality of social life,
the gravest problem of human inequality is the extraordinary
difficulty in prizing wealth away from the rich to give it to the poor
without employing levels of coercion or violence which are themselves
utterly corrosive of social progress. And repeatedly in the course of
the history of our human soceities, well intenioned, enormously
determined and courageous people, willing to sacrifice their lives for
an improvement in the equality of human life have had to face that
problem, we cannot make meaningful redistribution fast enough to
retain momentum politically without applying levels of coercion or
violence which will destroy what we are attempting.

And again and again, as Isaiah Berlin and other late 20th century
political theorists pointed out. Through hubris, through arrogance,
through romanticism, through self-deception, parties seeking permanent
human benefit and an increase in the equality of human beings have
failed that test, and watched as their movements of liberation
spiraled downward from the poison of excess coercion. We do not have
to do that anymore.

The gate that has held the movement for equalisation of human beings,
strictly in a dilemma between ineffectiveness and violence has now
been opened. The reason is that we have shifted to a zero marginal
cost world. As steel is replaced by software, more and more of the
value in society becomes non-rivalrous it can be held by many without
costing anybody more than if it is held by a few.

In the English speaking world, and it was primarily in the English
speaking world, in Scotland, in North America, at the outer edges of
the British empire, we moved towards a system of universal public
education in the course of 18th and 19th centuries. Protestant North
Europe moved over a lengthier period of time in a similar direction,
but universal public education still had to be conducted on the basis
of knowledge that could not be indefinitely duplicated.

Books are the first mass produced article in Western society. They are
the cheapest method of making large amounts of information available
by broad public access available in analog technology and they are
still grossly expensive, difficult to move, cumbersome to keep and
catalogue and maintain and very difficult for people to have access
to, who are not already located in socially central places. They are
also vulnerable as anybody who remembers the burning of the Sarajevo
library will recall vividly. It takes a day, with contemporary
technology to destroy the libraries it takes to centuries to
build. And in times of great social stress, libraries burn.

Now we live in a different world. For the first time, all the basic
knowledge, all the refined physics, all the deep mathematics,
everything of beauty in music, in the visual arts, all of literature,
all of the video arts of the 20th century can be given to everybody,
everywhere at essentially no additional cost beyond the cost required
to make the first copy. And so we face in the 21st century a very
basic moral question: if you could make as many loaves of bread as it
took to feed the world by baking one loaf and pressing a button, how
could you justify charging more for bread than the poorest people
could afford to pay?

If the marginal cost of bread is zero, then the competitive market
price should be zero too. But leaving aside any question of
micro-economic theory, the moral question, what should be the price of
what keeps someone else alive if it costs you nothing to provide it to
him, has only one unique answer. There is no moral justification for
charging more for bread that costs nothing than the starving can
pay. Every death from too little bread under those circumstances is
murder, we just don't know who to charge for the crime. We live,
there, now.

[21:55]

This is both an extraordinary achievement and a very pressing
challenge. There were good reasons after 1789 to be a little doubtful
about the wisdom of revolution. Because revolution meant the coercive
redistribution likely to spiral downward in the well-known way. In the
economy of steel, people who make steel become workers. They have
little individuality, they are reckoned as workers in an industrial
army. And as Marx and others like him pointed out in the middle of the
19th century. That is largely likely to lead to the model internally
of political progress through a clash of armies. We don't live there
anymore.

We find ourselves now in a very different place. You live there, I
live there, and my other clients live there. Its a place in which the
primary infrastructure is produced by sharing. The primary technology
of production is unowned. The effectiveness of that mode of
production in the broader society is now established. Plus or minus
the couple more years left before Microsoft fails entirely. We have
now proven either the adequacy or the final superiority in crass
economic terms of the way we make things.

We have brought forward now the possibility of distributing everything
that every public education system uses, freely, everywhere to
everyone. True universal public education for the first time. We have
shown how our software plus commodity hardware plus electro magnetic
spectrum that nobody owns can build a robust, deep, mesh structured
communications network which can be built out in poor parts of the
world far more rapidly than the 20th century infrastructures of
broadcast technology and telephone.

We have begun proving the fabric of a 21st century society which is
egalitarian in its nature, and which is structured to produce for the
common benefit more effectively than it can produce for private,
exclusive, proprietary benefit. We are solving epochal problems. We
are introducing new possibilities based upon new technological
arrangements to deal with the fundamental political difficulties that
we have coped with and our predecessors in seeking equality and
justice have coped with for generations. We are very lucky. We live
at a time when technological progress and the pressure for human
justice are coming together in a way which can produce fundamental
satisfactions that have eluded us for centuries, but in that luck
there comes responsibility: we need to get it done.

(go to menu)
[Section: Co-cohabiting with those who don't share our views]

There are other people with other views, we are not everybody. The
other views assume that this technology too can be shaped to support
hierarchy. That it can be shaped to support ownership. That it can be
shaped not only to ignore the moral question I have put forward but to
make that moral question invisible to almost everybody forever. The
folks on the other side are also very powerful. They look way more
powerful than we. They are also quite clear sighted, they also
understand that there is an ephocal openness here. And they have no
more intention of giving up what they claim as theirs now, then they
ever have had.

The dystopic possibilities of where we live are non-trivial. If you
imagine, right now, a flood of billions of dollars of consumer
products moving towards you in containers from the East containing
devices that use all this software we have made, but lock it down so
no one may tinker with it. So that if you try and exercise the
freedoms that it gives you, your movies don't play anymore, your music
won't sing, your books will erase themselves, your textbooks will go
back to the warehouse unless you pay next semester's tuition to the
textbook publishers and so on.

The magic of this technology is that it can be used for the great
ideal of capitalist distribution, to never actually give anybody
anything. Just as it can be used for our fundamental purpose, which
is, always give everybody everything. And so, in fact, we now find
ourselves in a more polarised place than usual. Not because Paris is
starving, not even because the lettres de cachet have grown
so horrifying to the population. On the contrary this population has
never been less horrified by putting people in jail without charges
and keeping them there forever than it has ever been in the past. The
reason that we now face a more than usually polarised circumstance is
that the sides that have confronted one another over equality and
social justice for generations are now more evenly matched than they
have ever been before.

You and I, and the people who came before us, have been rolling a very
large rock uphill a very long time. We wanted freedom of knowledge, in
a world which didn't give it, which burned people for their religious
or scientific beliefs. We wanted democracy by which we meant
originally the rule of the many by the many and the subjection of
today's rulers to the force of law. And we wanted a world in which
distinctions among persons were based not on the color of skin, or
even the the content of character, but just the choices that people
make in their own lives. We wanted the poor to have enough, and the
rich to cease to suffer from the diseases of too much. We wanted a
world in which everybody had a roof, and everybody had enough to eat,
and all the children went to school. And we were told always that it
was impossible. And our efforts to make it happen turned violent on
their side or on ours many more times than we can care to think for.

Now we are in a different spot, not because our aims have changed, not
because the objectives of what we do have changed, but because the
nature of the world in which inhabit technologically has altered so as
to make our ideas functional in new and non-coercive ways. We have
never in the history of free software, despite everything that has
been said by lawyers and flaks and propagandists on the other side, we
have never forced anybody to free any code.

I have enforced the GPL since 1993, over most of that time, I was the
only lawyer in the world enforcing the GPL. I did not sue, because the
courts were not the place for the rag-tag revolution in its early
stage to win pitched battles against the other side. On the contrary
in the world we lived in only 10 or 15 years ago, to have been
forceful in the presentation of our legal claims would have meant
failure even if we won because we would have been torn to pieces by
the contending powers of the rich. On the contrary we played very
shrewdly, in my judgement now as I look back on the decisions that my
clients made, I never made them. We played very shrewdly.

When I went to work for Richard Stallman in 1993 he said to me at the
first instruction over enforcing the GPL, I have a rule: you must
never let a request for damages interfere with a settlement for
compliance. I thought about that for a moment and I decided that that
instruction meant that I could begin every telephone conversation with
a violator of the GPL with magic words: "We don't want
money". When I spoke those words, life got simpler. The next
thing I said was "We don't want publicity". The third thing
I said was "We want compliance, we won't settle anything less
than compliance and that's all we want, now I will show you how to
make that ice in the Winter time". And so they gave me
compliance, which had been defined mutually as ice in the Winter time.

But as all those of us who are about to live with less ice in the
Winter time than we used to have will soon know, ice in the Winter
time can be good if you collect enough of it. And we did. We collected
enough of it, that people out there who had money to burn said, wait a
minute, this software is good we won't have to burn money over it. And
not only is this software good as software, these rules are good,
because they are not about ambulance chasing. They're not about a
quick score, they are not about holding up deep pockets. They are
about real cooperation between people who have a lot and people who
have an idea, why don't we go in for that. And within a very short
period of time, they had gone in for that. And that's where we live
now: in a world in which the resources of the wealthy came to us, not
because we coerced them, not because we demanded, not because we
taxed, but because we shared. Even with them, sharing worked better
than suing or coercion.

We were not afraid, we didn't put up barbed wire and so when they came
to scoff, they remained to pray. And now, the force of what we are, is
too strong for a really committed, really adversary, really cornered,
really big monopoly to do anything about it at all. That's pretty good
work in a short period of time, that you all did. You have changed the
balance of power in a tiny way. But when you look at it against the
long background of the history of who we are and what we want, it was
an immense strategic victory and not a small tactical engagement.

Now, as usual, when you win a small tactical engagement that turns out
to be a large strategic victory, you have to consolidate the gains or
the other side will take them back. So we are now moving into a period
in which what we have to do is to consolidate the gains. We have to
strengthen our own understanding about what our community can do. I
wanna go back to the thing I said at the beginning. In the 21st
century economy production occurs not in factories, or by people, but
in communities.

Ebay is a pretty decent way of organising a community to sell and buy
stuff and empty garages. And it is doing a pretty fair job of
that. Myspace, Friendster, nevermind who owns, nevermind what's
intended, never mind the paedophiles, is a pretty good way of dealing
with an extraordinary deep and important problem that most societies
have to cope with, which is how to give old children becoming young
adults some way of experiencing their independent identity in the
world. How to give them a way to say, here I am, this is what I am,
this is what I feel, this is what is going on in my life. It has
produced a lot of bad adolescent poetry, it has produced a lot of
risqué photography, and self portraits in states of déshabille, but it
also dealing with a thing which has sometimes been known to cause
suicide, and which shouldn't be taken quite so lightly.

It is not a small thing if you feel yourself to be a really isolated
teenager, living and working in a part of the world, that doesn't
understand you at all. To know that you can have tens of thousands of
people around the world, immediately available to you, who know what
you are feeling and who can provide the kind of support that you
need. That's actually social service work of a very deep and important
kind. We are making communities, that produce good outputs and other
people are looking at them as bussiness models where eyeballs are
located. Up to a point that's acceptable, and when the tipping point
is reached it isn't anymore. And that's the kind of activity which is
now our political challenge. To understand how to manipulate those
processes, as we all can because we make the technology. How to
manipulate those processes so as to gain the social benefit, and
reduce the possibility of power discrepencies developing that
neutralise the very kinds of social justice outcomes we are looking
for. This is possible to do. It is not only work for lawyers.

Mary Lou Jepsons inventions in connection with the display of the One
Laptop Per Child will turn out to be of enormous importance to the
world. The One Laptop Per Child box, which I have spent a lot of time
helping with this past year, and everybody in this room ought to be
thinking about hard, because it's a great moment in human
technological history, the One Laptop Per Child box has a few
requirements that are really important for computers in the 21st
century. One a child has to be able to take it apart safely. Two, you
have to be able to generate electricity for it by pulling a
string. Three, it has to be culturally accessible to people who live
in a whole lot of different places around the world, speak different
languages, have different worldviews, have different understandings of
what a computer is, or might be, or could be, or what this thing is
that their children are holding. It has to be discoverable, it has to
be a place for a child to explore indefinitely, and learn new things
in all the time.

I just want to concentrate on the first parts. It has to be something
you can pull a string to power, and it has to be something a child can
take apart safely. No existing LCD panel meets those needs. Because
every existing LCD panel in the world uses a mercury backlight, which
runs on high voltage which is dangerous, and which contains toxic
chemicals, like the mercury itself of course.

[40:22]

So how about a display which gives you transmissive color, beautiful
color indoors, and high contrast black and white in full sunlight. So
that it can be used in every natural environment, and which consumes
per unit area, one tenth of the electricity used by standard, current
LCD panel displays. How about that it doesn't have any harmful
substances in it, can be safely disassembled and reassembled by a
child down to its components, so that field replacement of almost
anything can occur. And is in addition cheap to manufacture.

So we are gonna give an enormous gift to all the cell phone and gadget
manufacturers of the world out of OLPC, which is why Quanta, the
largest manufacturer of laptops in the world, and the display
manufacturers throughout the pacific rim are screaming to be first or
second sources of the OLPC display. Because the patents in there are
worth sharing in. In other words, the free world now produces
technology whose ability to reorient power in the larger traditional
economy is very great. We have magnets, we can move the iron filings
around.

We can also change the infrastructure of social life. That OLPC is
every textbook on earth, that OLPC is a free MIT education, that OLPC
is a hand powered thick mesh router. When you close the lid as a kid,
and put it on a shelf at night, the main CPU shuts down but the 802.11
gear stays running all night long on that last few pulls of the
string, and it routes packets all night long. It keeps the mesh. The
village is a mesh when the kids have green, or purple, or orange
boxes, and all you need is a downspout somewhere, and the village is
on the net, and when the village is on the net, everybody in the
village is a producer, of something, services, knowledge, culture,
art, youtube TV.

The week that Rodney King was beaten in Los Angeles, I was on the
telephone with a friend of mine who does police brutality cases in
Dallas, Texas. And he said to me, you know what the difference is
between Dallas and Los Angeles? I said I don't know. He said fewer
video cameras. That was a long time ago, there is no place on earth
with too few video cameras anymore. The gadget makers took care of
that.

Now what is journalism like when every village has a video camera and
is on the net. What is diplomacy like, what does it mean if the next
time somebody starts some nasty little genocide in some little corner
of the Earth, the United States government would prefer to ignore,
that there is video all over the place, all the time in every living
room. What does it mean when children around the world are networking
with one another over the issues that concern them directly, without
intermediation, everybody to everybody. Saying do you have what we
need? How come you have what we need? How come we can't do what you
can do? Because your father's rich? Because we're dark? Because we
live down here?

Globalization has been treated up till now, as a force which primarily
puts ownership in the saddle, maybe, maybe. But the One Laptop Per
Child seems to consolidate some of our strategic gains. Which is why I
am in favour of pressing hard for it and things like it.

Now let me come back to the stuff we have in common in this
room. Community I have said, not an original thought, is powerful. The
network makes community out of software. But some software is better
at producing community than other software. GCC is a really useful
thing, I agree, but it doesn't produce community, in fact if anything
GCC has been known to produce the opposite of community. And this is,
this is not a joke about compiler guys either, right, the Perl
intrepreter, which is a fine thing, produces rather little community
too. And the community it produces is, what shall we say, rather
inward looking. There are other kinds of software which produce
community in a very different way. And you know what that's like,
because you work in one of those corners. The problem that I have with
things called content management systems is that they are systems for
managing content, which is not very important.

Community building software however is very important. I am trying to
do a little thing this year called making GPL3. Which is actually more
about having a lot of discussions with a lot of very different people
around the world about what they think free software licensing ought
to be like and why they don't like Stallman. The latter is not the
subject I go out to talk about, it's just what they talk about, no
matter what I do about it.

It's an attempt to create a kind of broad global community, of people
who care about a thing that they all take very seriously, and they do
take it very seriously you understand. When guys fly from Germany to
India to participate in their second international conference on GPL3,
you know they really care. So, I have been talking to lot of different
people on a lot of different forums, some of them like IRC, some of
them produce formal documents, some of them are telephone types,
that's all held together by Plone. That's many different overlapping
communities held together by software for making communities. It's
related to voice over IP through Asterisk, which changes my life as a
lawyer completely. Those of you who haven't discovered what free
software can do to IP telephony, you have a great discovery headed
your way.

And we made a little bit of software of our own for dealing with a
thing that it turned out that there was no existing tool for that we
really liked. Namely some austere simple interface for marking up one
document in a very, very, very multiplicitous way, with tens of
thousands of possible commentators. So that everybody participating
can see what everybody else has done in some manageable way and can
intervene in the process in a thoughtful fashion, tied to some
particular phrase, or word, or piece of a document that concerns
them.

Before we started this activity I read lots and lots of commentary
that said, as soon as FSF tries to do this, it is gonna dissolve into
a flame war. As soon as anybody attempts to do this, it is just gonna
become Slashdot all the time. It wasn't like that, it hasn't been like
that, even Slashdot hasn't been like that. That's not the way it went,
but of course there were lots of stuff said that I regret, some of it
was said by very big people, much of it was said by Forbes. But that
wasn't the problem, right. The coherence of the community, a community
which includes Ubuntu users in Soweto as well as IBM, includes
developers in Khazakstan as well as Hewlett Packard, includes people
who have thousands of patents, as well as people who don't know what a
patent is. That conversation has gone, I think, remarkably peaceably
and quite constuctively for a period now of about 10 months. 20 years
from now the scale of our consultation over GPL is gonna seem tiny.

The tools we use, are gonna seem primitive, the community we built to
discuss the licence is going to look like a thing a six year old could
put together without taking more than a couple of breathers around
it. And yet that's only going to be because our sophistication in
global coordination of massive social movements is going to be so
good. You do not see Microsoft out conducting a global negotiation
over what the EULA for Vista should say. And even if they were minded
to do it, they couldn't, because they are not organised for community,
they are organised for hierarchical production and selling.

I have heard a lot of stuff from people who thought that Richard
Stallman was a problem but ask yourself this: if the GPL process had
been run by Steve Ballmer?

Alright. So we are learning in very primitive ways within our
community, how to build large, globe girdling organisations for a
special purpose for a short period of time to engage people
constructively in deliberation and we are learning how to do that
despite vast cultural and economic discrepancies in the assets of the
participants. That's 21st century politics. Plone makes it.

[50:27]

But it isn't what you have, it's what you do with it. So we have some
remarkable oppurtunities, all of us. We have a very special place in
the history of the campaign for social justice. We have some very
special infrastructure, we have new means of economic development
available to us. We have got proof of concept, we have got running
code, that's all we ever need. But we need prudence, we need good
judgement, we need a willingness to take risks at the right places and
the right time. We need to be uncompromising about principle, even as
we are very flexible about modes of communication. We need to be very
good at making deals and we need to be very clear, absolutely clear,
without any mobility or variance of the bottom line about what the
deals are for, where we are going, what the objective is.

If we know that what we are trying to accomplish is the spread of
justice and social equality through the universalisation of access to
knowledge, if we know that what we are trying to do is to build an
ecomony of sharing, which will rival the economies of ownership at
every point where they directly compete, if we know that we are doing
this as an alternative to coercive redistribution, that we have a
third way in our hands for dealing with long and deep and painful
problems of human injustice, if we are conscious of what we have and
know what we are trying to accomplish this is the moment when, for the
first time in lifetimes, we can get it done.

We do not need revolutions in which the have nots dispossess the haves
right now. But we are under pressure, there are a lot of people in the
world. There is not a lot extra to eat. There is not a lot excess
clean water to drink. Minds are being thrown away by hundreds of
millions in a world where people are trapped in subsistence crisis
that is now avoidable and their ability to think and create and be is
stunted forever. The climate is changing beneath our feet, the air is
changing above our heads. And as the fossil fuel system decays, the
inequalties and power discrepancies and authoritarianisms that grew up
around the oil bussiness in the 20th century are going to do us real
harm.

So we have great oppurtunites, we have great challenges, the upside is
the highest it has been in generations and the downside is not too
pleasant. That means there is a great deal of work to be done. Oddly
enough it's not painful, it consists of doing neat stuff and sharing
it. You've been sucessful at it already beyond anybody's expectations
and beyond most people's dreams.

"More of the same" is a good prescription here. But a little
more political conciousness about it, and a little more attempt to get
other people to understand not just "what", but
"why" would help a lot. Because people are getting used to
the what. "Oh yeah Firefox, I use it all the time" Why?
"Why, because the internet..." no no no no no no, not why do
you use it, why does it exist? "Oh I don't know, its, some people
did it". Okay. That's the moment, alright, that's the moment,
that's the one where that annoying Stallman voice should enter the
mind, okay. Free as in Freedom. Free as in Freedom.

[55:03]

Tell people it's free as in freedom. Tell them that if you don't tell
them anything else. Because they need to know. We've spent a long time
hunting for freedom. Many of us lost our lives trying to get it, more
than once. We have sacrificed a great deal for generations, and the
people who have sacrificed most, we honor most when we can remember
them. And some of them have been entirely forgotten. Some of us are
likely to be forgotten too, and the sacrifices that we are going to
make aren't all gonna go with monuments and honors, but they are all
going to contribute to the end, the end is a good end if we do it
right, we have been looking for freedom for a very long time, the
difference is: this time we win. Thank you very much.

[Applause]

I need to go back to New York City, but I would like to take some
questions. I have talked too long and heard too little. So I want to
spend a little time. Questions? Yes, I'll repeat them so that they can
be heard.

[56:26]

(go to menu)Q1: One issue that social
software faces is user generated content. Most of the time, users will
give content freely to sites like YouTube, what rights and obligations
do companies that host this content have? What rights and obligations
should they have?

Eben Moglen: Well the usual
way of dealing with that question is through what we call licences,
which are statements of rights and obligations concerning creative
works. And whatever we think about ownership structures, copyright
exclusivities, it's a good idea to attach permissions and restrictions
or requirements to works of creations, so that people know how to deal
with them respectfully.

This is why my dear friend Larry Lessig has spent so much time
attempting to evolve a social structure which could form an umbrella
for a series of instructions that people can usefully give about works
of their creation. The Creative Commons idea is an attempt to face the
question you are asking, if we are going to move to a world in which
content is created by community, rather than hierarchically through
ownership and work for hire structures, we're gonna have to have a
system for giving and explaining creators' understandings about their
works in a defined, clear, operable, administrable fashion, and it was
that insight which led Lessig to go where he went.

Now there are lots of controversies surrounding the particulars of the
Creative Commons implementation of that idea. Larry would say: and
there should be, because it is a new thing politically and it should
be heavily discussed. In the long run though that's where we are
going. Towards an evolution of a series of free licences that allow
people to share all the things that they create with the same degree
of effectiveness that some licences have allowed software to be
shared. I think that that work is but years from completion now, maybe
even less than that because so much force is behind the question. So I
think that's how we solve it.

(go to menu)Q2: Many hosted services use
open source software and enhance it and sometimes, I can imagine,
never release it back to the open source community. How will the, can
the GPL erase something like that in future?

[59:09]

Eben Moglen: It could,
conceivably, be the case that those who enhance shared software and
never distribute, their enhanced versions but merely provide services
over it, maybe those people are playing fair, maybe that's ok, maybe
it isn't. Right. So the first question is Have we reached concensus on
the underlying policy goal? I think the answer is no. I have believed
for about 5 years since this particular point began to become
obviously important, I have believed that there might be an evolution
towards a concensus. I still see none. There is a - I would say
predominant - view even in the developer community, let alone in the
user community, that that's a perfectly OK thing to have happen. The
reason is that developers take the right of private modification very
seriously. And the Free Software Foundation does too, the right of
private modification is an important right, compelling people to
disclose work that they do on software is not a good outcome, even if
the software they start from is shared.

So the question becomes less, I think, are the people who provide
services over privately modified software doing something wrong? The
question becomes, what is the right of a user of a service enabled by
software, and is that different from the right of someone who has
received a copy of her own of a computer program. I think it is
reasonable to draw an ethical distinction, between somebody who walks
up to an ATM and somebody who receives a copy of a program which could
be used to run an ATM. How far that ethical difference extends and
what the ruleset ought to be, I think is still unclear. GPL3 offers a
compromise, it offers to be compatible with a licence which is like
the GPL but which contains the opposite rule. That is to say, services
provided over modified versions lead to a requirement to release the
modifications.

I suspect that if that proposal becomes part of the final GPL3, as it
is currently slated to do, that there will be a fairly small number of
developers who will write programs which are marked in the relevant
way, if you modify this and provide services, you have to release the
mods. I think those programs will get very small commercial use,
because commercial users will by and large not like that rule, and
avoid software published under it. And so we will in effect wind up
with a certain amount of remote service provision software under that
rule, with very little technical uptake in commercial life. That would
not result in much additional rights for users, because most of the
software users will be interacting with from day to day won't be
covered by those rules. That doesn't seem to be an outcome that is bad
in itself, but it also doesn't seem to be an outcome that is very
important to shed blood for. So I have entered into the GPL3 process
thinking that either outcome might eventuate. Linus Torvalds if I
might just say so for a moment, says this a very bad idea and it
shouldn't be done, and is part of the reason he doesn't like the
licence. We are listening carefully to everybody including Linus
Torvalds.

Eben Moglen: Yes, that's
right. Let me take one intermediate step, John, before I get to the
end that you have reached. As you may have noticed, Internet Explorer
7 solves the phishing problem. No more phishing. Everytime you type a
URL into the location bar of the browser it sends it to a Microsoft
server and says "is this phishing?". (Laughter). And you
have to admit that this is a new solution to that problem, right. I
hadn't thought of it before, maybe Google had thought of it and
Microsoft wanted to get there first. Right, it's correct. Software is
really good at one thing, software is really good at saying: this data
is mine. Software does that by branding data all the time with whose
it is, and where it came from and what we did with it and lots of the
data that other people software brands is about us, and concerns us,
and even identifies us in the deepest and most intimate ways. Dealing
with that without disturbing the freedom of software to operate is a
tricky problem.

Almost everybody's solutions, not coincidentally, hurt the freedom of
software because they are largely solutions which offer either
security or privacy through a proprietary solution which hurts the
freedom of software. And that is the dialogue that we have at the
moment. So there are corporate parties participating in the GPL3
dialogue who deeply disagree with FSF about the importance of Disney,
and Sony and other entertainment manufacturers in the anti-DRM part of
the GPL3. They say: we think you at the Free Software Foundation are
wrong, Disney and Sony are never going to lock down the entire net to
protect entertainment, they want to but they can't. And if that were
the only reason for having anti-DRM components in GPLv3 we would be as
hostile to it as they are. But we, gadget manufacturers mostly, we
think that you are right that pervasive lockdown is a worry, it's just
you have identified the source of it wrong. It's not the entertainment
industry, it's the security establishment. We think that the reason
everything is gonna be locked down is people are gonna rush to
implement security and the only way they can think of is to lock down
the whole stack. And we worry about that too because locked down
stacks are bad for us as gadget manufacturers, they interfere with
porting our stuff around, and they reduce flexibility, and so we don't
like that. And we would therefor be prepared, they say quietly, to
work with you on anti-DRM if you would only stop kicking Disneys shins
quite so much. Well alright that's...

[Somebody]: Will you take one more?

Eben Moglen: Yeah, sure.

Audience comment: Thanks so much, that was
an incredible talk and it really reminds me of the passion of why we
are here. And I just wanted to make a comment about the One Laptop Per
Child program, which seems, what's really strong about it is how clear
and relevant the design principles are, and I guess I would just, my
question is more for the whole community. What are the design
principles, how can we better articulate the design principles of
Plone in our communities so that everybody who touches or sees the
software is inspired with what it means at a deeper level and connects
to like, what the program is doing.

Eben Moglen That's beautiful,
there was an introduction that wasn't about me, when I came in. There
is a question that is not about me, so I can go out, and I think
that's the right question to ask. (Laughter) Thanks very
much.

[Applause]

Host: One point I need to add on this, I
neglected in the introduction. During your talk you mentioned that
these rules are good, and good as in just, as well as good as in
effective. And you have been working on these rules in the larger
historical sense, but you also worked on these rules in a very local
sense for us. Eben helped us bootstrap the Plone Foundation, conceive
the software conservancy idea, that became our, the legal entity Chris
was just mentioning. Not only that but he, his Software Freedom Law
Center with Dan Ravicher and Karen Sandler and all those wonderful
people helped take that idea and put it into a legal entity. So the
Plone foundation that we have, the us that is us, is courtesy of Eben
and his team. So thank you for speaking today and thank you for all
those things.